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In this post, Shabbir Bokhari, a paralegal in the Litigation & Arbitration team at CMS comments on the decision from the Supreme Court in R (AAA and Ors) v Secretary of State for the Home Department [2023] UKSC 42 which was handed down on 15 November 2023.

The Supreme Court has unanimously held that the ‘Rwanda policy’ is unlawful ruling that the Court of Appeal [2023] EWCA Civ 745 was correct in reversing the decision of the Divisional Court [2022] EWHC 3230. The Supreme Court found there are substantial grounds for believing that the removal of the claimants to Rwanda would risk exposure to a real risk of ill-treatment by reason of refoulement.

Background

The appeals to the Supreme Court stem from claims initially brought by individuals who travelled to the UK in small boats and, in one instance, a lorry. Subsequently, they applied to the UK for asylum. The Secretary of State, under paragraphs 345A to 345D of the Immigration Rules made under the Immigration Act 1971, declared that the claims for asylum were inadmissible. These sections of the Immigration Rules stipulated at the time that, where an individual seeking asylum had the opportunity to apply for asylum in a safe third country but did not do so, their asylum claim could be ruled inadmissible. Thereafter, the individual seeking asylum could be removed to a safe third country where the opportunity to make the asylum claim arose, granted that country was willing to accept them, or to any other safe third country which agreed to accept them.

This framework allowed the Secretary of State, in accordance with the Migration and Economic Development Partnership (“MEDP”) between the UK and Rwanda, to decide that the individuals concerned had had the opportunity to apply for asylum in a safe third country beforehand but did not apply and that Rwanda was a safe third country. Therefore, the Secretary of State intended that the asylum claimants should be removed to Rwanda where their asylum claims would be decided by the Rwandan authorities with the aim that if they were successful the claimants would be granted asylum in Rwanda (the “Rwanda Policy”).

Decisions of the Lower Courts

The Divisional Court held that the policy was legal but that, in the individual cases brought before the court, the way the Secretary of State had implemented the policy was procedurally flawed. Therefore, those cases were quashed and remitted to the Secretary of State for reconsideration.

The Court of Appeal overturned the decision of the Divisional Court on the basis that there were real risks to persons sent to Rwanda being returned to their home countries where they would face persecution or other inhumane treatment (refoulement) when they otherwise had a good claim. Therefore, the court reasoned, under the Human Rights Act 1998, s 6, that Rwanda was not a safe third country unless and until deficiencies in its asylum process were corrected. This is because, it would breach the ECHR, art 3, which prohibits torture and inhuman or degrading treatment. The Court of Appeal rejected the claimants’ other grounds of appeal.

Subsequently, the Secretary of State appealed on Issues 1, 2, and 3. AAA (Syria) and others and HTN (Vietnam) cross appealed on Issues (4) and (5). AS (Iran) also cross appealed on Issue (4). ASM (Iraq) appealed on issue (6). The issues are dealt with below.

Decision of the Supreme Court

The issues on appeal before the Supreme Court were:

  • Issue 1: Did the Divisional Court apply the wrong test when determining whether removal to Rwanda would breach ECHR, art 3?

The Supreme Court confirmed, as outlined in Soering v United Kingdom [1989] 11 EHRR 439, that the Divisional Court should have assessed independently whether substantial grounds existed for believing individuals sent to Rwanda would be at real risk of refoulement. However, the Supreme Court found it difficult to ascertain which test the Divisional Court applied as the Divisional Court seemed to both suggest it “saw its function as reviewing the Secretary of State’s assessment and deciding whether it was a tenable view” but also recognising “that it had to carry out the necessary assessment itself”. Nevertheless, the Supreme Court did not deem it necessary to reach a conclusion on Issue 1 as it considered the Court of Appeal was entitled to interfere with the Divisional Court’s conclusion.

  • Issue 2: If the Divisional Court applied the right test, was the Court of Appeal entitled to interfere with its conclusion that Rwanda was a safe third country?

Although it was indeterminable if the Divisional Court applied the correct test, the Supreme Court determined the Court of Appeal could interfere regardless. This was principally because the Divisional Court had “erred in its treatment of the evidence bearing on the risk of refoulement”. The United Nations High Commissioner for Refugees (“UNHCR”) was an intervener in the proceedings and the Divisional Court failed to “engage with the evidence of UNHCR concerning problems affecting the processing of asylum claims in Rwanda”. This was significant; the Divisional Court’s approach to the evidence required an independent assessment of how the asylum system in Rwanda operated in practice without relying too heavily on the UK government’s assessment of the Rwandan government’s assurances. The Divisional Court decided it would go beyond the government’s opinion “only if there were compelling evidence to the contrary” and determined that the evidence of UNHCR “carries no special weight”. The Supreme Court disagreed and concluded that the Divisional Court should have considered fully the issues UNHCR had identified. As it did not, the Divisional Court had erred in its approach and the Court of Appeal was entitled to interfere. 

  • Issue 3: If the Divisional Court applied the wrong test or there was another basis for interfering with its conclusion, was the Court of Appeal right to conclude that Rwanda was not a safe third country because asylum seekers would face a real risk of refoulement?

The Supreme Court held that the Divisional Court should have reviewed the evidence of the UNHCR concerning the human rights conditions in Rwanda and the adequacy of the Rwandan asylum system in previous refoulement cases.

Most significantly, the Supreme Court noted the Rwandan government’s failure to comply with refoulement principles in a previous agreement it had with Israel between 2013 and 2018, in which it had given assurances to relocate individuals seeking asylum but that ultimately resulted in serious breaches under the Refugee Convention.

Therefore, the Supreme Court concluded that, unless or until significant changes were made, Rwanda, at best, displayed a lack of understanding of the obligations that it had under the Refugee Convention and, that the evidence presented went “some way” to support the suggestion of, an attitude in Rwanda which was dismissive of individuals who were seeking asylum from those respective countries.

Retained European Union Law

These issues fit into the broader context of retained EU law and the Secretary of State’s legal obligations under the EU Procedures Directive.

  • Issue 4: Did the Home Secretary fail to discharge her procedural obligation under ECHR, art 3 to undertake a thorough examination of Rwanda’s asylum procedures to determine whether they adequately protect asylum seekers against the risk of refoulement?
  • Issue 5: Were there substantial grounds for believing that asylum seekers sent to Rwanda will face a real risk of treatment contrary to ECHR, art 3 in Rwanda itself, in addition to the risk of refoulement?

The Supreme Court decided that, based on its decision regarding refoulement, it was not necessary to determine these two grounds, which in any event had already been rejected by both the Divisional Court and the Court of Appeal.

  • Issue 6: Does the Asylum Procedures Directive continue to have effect as retained EU law? This is relevant because the Asylum Procedures Directive only permits asylum seekers to be removed to a safe third country if they have some connection to it. None of the claimants had any connection to Rwanda.

One claimant, ASM, argued that the MEDP violated the Immigration Rules as it conflicted with the Asylum Procedures Directive, arts 25 and 27. The Supreme Court found in favour of the Secretary of State, as had the Divisional Court and the Court of Appeal, that the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 had in effect made the Asylum Procedures Directive no longer applicable. Therefore, the Secretary of State had not breached their obligations in this regard.

Comment

The ‘Rwanda Policy’, although unlawful, still has the potential to become lawful if the risks of refoulement are removed. Additionally, such schemes are not, in principle, unlawful if refoulement obligations are met. Ultimately, the Supreme Court validated the approach taken by the Court of Appeal, that it is for the courts to independently determine if substantial grounds exist for a real risk of ill-treatment by reason of refoulement to individuals seeking asylum.